In accordance with the role conferred on it in the Nouméa Accord, the University meets the specific educational and research needs of New Caledonia and endeavours to effectively support the country’s development. The LARJE plays a key role in this respect in the legal and economic domains. Because of the gradual mass transfer of the competences normally devolved to the French state (with the single exception of sovereign competences, which are subject to a referendum), diligent research is essential in these two domains.
Access to and knowledge of the law remains one of the key elements for a New Caledonian citizenship that is yet to be constructed. A survey of overseas law, that is, the search for a legal foundation for public and private actions in New Caledonia, includes both the identification of applicable law following the so-called ‘principle of speciality’ and the legal norms transfer models following the so-called ‘principle of assimilation’ or the principle of appropriation of external norms.
The liberation provided for by the Nouméa Accord raises the question of the resources that New Caledonia will have to generate for itself. We will study the different ways of emerging from a dependence economy system. New Caledonia remains a rich but fragile small economy, whose main sources of wealth are the exploitation of a non-renewable natural resource (nickel) and financial transfers from metropolitan France. The team’s approach here is to evaluate and support public policies through an integrated legal, financial, fiscal and economic reflection.
The laboratory thus bases its research on two principal areas:
Natural diversity, cultural diversity and legal pluralism
Legal and economic liberation
Optimal resource management to guarantee New Caledonia’s liberation is essential if this liberation is to be synonymous with independent sustainable and stable development. The existence of large industrial developments (new metalworking factories in the north and south of the island) in an exceptionally rich environment raises problems relating to mining, nickel, the protection of terrestrial and marine biodiversity, land law and the protection of intangible heritage. These are themes that the different actors in civil society and political life have been made aware of and which extend beyond the geographical boundaries of New Caledonia.
ENVIRONMENTAL LAW – PRESERVATION OF BIODIVERSITY
Environmental preservation is a crucial issue in New Caledonia, which is a biodiversity ‘hot spot’ that witnesses the coexistence of major mining activity and an exceptional endemicity. In this context, questions relating to the division of competences in environmental matters figure prominently in the country’s bid to guarantee the preservation of its exceptional natural heritage. Beyond that, the protection of traditional knowledge linked to natural resources as well as the coherence of provincial regulations are salient points in localised research. Moreover, the laboratory also explores a more recently developed research area focusing on the legal status of environmentally displaced persons within the specific context of Oceania.
INTELLECTUAL PROPERTY LAW – PROTECTION OF INTANGIBLE CULTURAL HERITAGE
Intellectual property law is a key tool in the protection of intangible cultural heritage and traditional knowledge. It also offers a framework for the safeguarding and development of the pharmacopoeia.
LEGAL PLURALISM – VARIATIONS IN ACCOUNTING FOR THE CULTURAL SPECIFICITIES OF NEW CALEDONIA IN THE ADAPTATION OF THE LAW
New Caledonia, like its regional environment Oceania, is a space marked by cultural diversity. In New Caledonia, the Nouméa Accord recognises the indigenous Kanak population as being distinct from the French population with whom they share, on a transitional basis, the same nationality. The diversity of the French population is considered through the legal and constitutional recognition of non-native communities (mainly European, Asian and Polynesian), whose role in the country’s construction is recognised and who intend to preserve their own particular cultures and values. The Kanak population and the non-native communities are expected to come together in a common destiny that is centred around New Caledonian citizenship. This multiculturalism has an influence on the norms and is the source of a legal pluralism that is both recognised and ever-expanding. Norms of different origins, which do not apply to the same legal situations but which are nevertheless recognised as having equal juridical status by the French Constitution of 1958, coexist in New Caledonia. First, the country has French law, which originates from metropolitan France and which is subject to the principle of legislative speciality for all non-sovereign laws. Second, it has New Caledonian law, that is, the norms (national laws and resolutions) voted in by the country’s institutions, which are binding and which were adopted within the framework of the transfer of competences. Finally, it has the Kanak customs, whose legal status is recognised in certain domains (civil law and customary lands). The transfer of the competences of civil law, commercial law and the regulations regarding civil status on 1 July 2013 has placed the matter of legal pluralism in New Caledonia firmly in the spotlight since it now has competence for almost all private law. A possible addition to the foreign norms is the Wallis and Futuna customs, whose enforcement in the community living in New Caledonia is currently being mooted. Beyond the source questions that these transfers pose, they raise further questions regarding, for example, the revival of norms-related internal conflicts between metropolitan French law, New Caledonian law, Kanak customs and Wallis and Futuna customs. Legal pluralism is a research subject that is approached from a number of different angles, including a general angle (most notably source, interpretation, evidence and legal system) and a subject-specific angle (particularly status and legal capacity of persons, family, liability, inheritance and property) as well as in terms of setting out the norms (internal conflicts of laws, hierarchy of norms and fundamental liberties). A comparative approach is essential for an understanding of legal pluralism in New Caledonia. While the country is unusual within the French model, it is not unique in the South Pacific region, where many island territories have this kind of legal pluralism (such as Vanuatu and the Solomon Islands) and/or which function from an institutional point of view according to a shared governance model (like the Cook Islands).
PROPERTY LAW – CUSTOMARY SPACES AND CUSTOMARY AUTHORITIES
Property law is a leading research topic, taking into account the delicate issue of compatibility between property law such as it is understood in French law and the Kanak’s legal relationship with the land. Here, the Western economic world comes face to face with the Melanesian world. Each of these worlds has its own beliefs and its own cultural environments. This clash makes exchanges difficult and necessitates different intermediations. The Groupement de Droit Particulier Local (association for specific localised law) is an organisational legal body that was initially set up to facilitate the link between the traditional society and the outside world, before the legal personality of the clans was officially recognised in 2011. In addition, the laboratory carries out research on conflict resolution, particular regarding arbitration and the prerequisite for recourse to the customary councils before the court can challenge customary acts as well as the role of customary assessors.
INDIVIDUAL RIGHTS AND FAMILY LAW – IDENTITY
Individual rights and family law are essential because they concern the crucial question of identity. The status and legal capacity of persons and the rights of families and of their patrimony legally and culturally affects the innermost core of a diversified society. Marked by cultural pluralism, these legal disciplines recognise the coexistence of various sets of rules, namely, Kanak customs, ‘alien customs’ from the Wallis and Futuna communities and codified law from metropolitan France. This pluralism is further accentuated by the transfer of normative competence in civil law. Anything that escaped the principle of legislative specialty became a competence transferred by the French state to New Caledonia in 2013. The diversity of personal statuses has become more pronounced and now also concerns persons with civil status. Novel questions are emerging to challenge the LARJE researchers, including differentiation of persons by civil status, equality of personal statuses, emergence of internal conflicts of law, authority of fundamental rights and respect for the norms hierarchy. The LARJE researchers endeavour to deploy their efforts equally to issues specific to New Caledonia and questions of national significance.
The members of the laboratory have contributed to the legal reflection on the construction of the localised competence New Caledonian health law. While the country has had competence in matters of hygiene, public health, social security cover and benefit payments since 1957, these competences (reinforced in 1988, 1998 and 1999) are to be reviewed from the perspective of the transfer of the competence of civil law in 2013, which impacts health law. The New Caledonian public health code currently being developed is gradually breaking away from the French public health code in order to more closely integrate common law and customary law. Health law involves the relationship with the body, which is directly linked to respect for the patient’s culture. In a multicultural country like New Caledonia, the prehension of the human body through law and its implications in terms of the normative framework of therapies provide extremely interesting research topics for the LARJE members. Between traditional medicine and the application of bioethics laws, the country must bridge a huge cultural and legal gap and construct its equilibrium. Adopting an anthropological perspective, the jurist must reflect on the evolution of health law in New Caledonia. A harmonious construction of the law will reconcile the reservation of traditional knowledge and the integration of the most modern technologies while respecting the beliefs and values of each party. This study has allowed us to connect New Caledonian law with international and comparative law to reflect on a foundational dimension in the Pacific. This theme has given rise to an international bilingual conference on the health law applied in New Caledonia.
INSTITUTIONS AND CONSTITUTIONAL LAW
The laboratory continues to develop its research on New Caledonian constitutional law, whose specificity no longer needs to be demonstrated but whose complexity still raises challenging institutional questions. New Caledonia comes under title XIII of the French Constitution, which departs from many points in the Constitution. The laboratory has achieved recognised expertise in this domain. Its research also focuses on the subject (whose terminology is ambiguous) of the exit from the Nouméa Accord and the question of ‘post-Nouméa Accord’ institutional engineering. In particular, the research has focused on the history of the anglophone Pacific and the search, using comparative law, for models of association and existing associated states, including for models inspired by consociational democracy.
TRANSFER OF COMPETENCES – PUBLIC LAW AND PRIVATE LAW
The transfer of civil law and commercial law to New Caledonia, effective as of 1 July 2013, has been the subject of particular research attention by the team before, during and after the event. The principle of this transfer showed New Caledonia’s singular position within a gradual process of liberation and posed new and highly significant problems. The transfer of competences in matters of civil law and commercial law raises the question, among others, of the ongoing updating and adaptation of this law, of its substantive and spatial scope, of the links between localised law and the competences retained by the French state (particularly concerning nationality and the guarantee of civil liberties), of the exercising of this competence by New Caledonia’s Congress and of the model for creating the New Caledonian norm. Moreover, New Caledonia’s employment law, which, since 1985, has drawn only its guiding principles from the French state, is a competence that has belonged to the country since 1 January 2000. This is a key research domain, whose foundation stone is the social and human environment. Positive employment law has been drawn in large part from metropolitan French law. The transfer of normative competence now allows New Caledonia to develop a social law that meets the expectations of localised employment partners. There are many social, economic and cultural particularisms that have to be taken into account within the context of professional employment relations. This therefore means not only analysing the direction already taken by employment partners and the New Caledonian legislator to respond to the needs of New Caledonia but also and more particularly proposing areas for development in order to be able to construct the New Caledonian employment law of tomorrow.
SOURCES OF GROWTH AND INEQUALITIES?
New Caledonia is a wealthy but inegalitarian small economy, whose main sources of wealth are the exploitation of a non-renewable natural resource (nickel) and financial transfers from metropolitan France. It therefore presents an economy that is highly dependent on unstable and unsustainable revenue sources and whose exploitation contributes to increasing social inequalities. Two questions therefore arise. First, how can New Caledonia offset its financial withdrawal from metropolitan France, which in all likelihood will be partial but which is nevertheless inevitable given the process of institutional liberation and France’s growing debt? The research areas explored by the laboratory include taxation, management of the mineable resource, monetary parity and regional integration. Second, how can we link growth and a reduction in inequalities? A more equitable distribution of resources, opportunities and power between the different social groups seems essential, not only morally and ethically but also for economic development and social harmony. The team has therefore focused its research on evaluating public action in terms of policies to reduce inequalities, which have been summarised in New Caledonia since the Matignon Accords (1988) under the heading of ‘readjustment’, through an integrated legal, financial, fiscal and economic reflection. Research on the public finances and fiscal and monetary reforms also stems from these questions.
This area of research applied to the regional economy and targeting New Caledonia and the Pacific region in particular is in keeping with the expectations of the Nouméa Accord regarding the research carried out at the UNC. The guiding principle in this area concerns the resources. How can we generate and diversify resources for New Caledonia? A number of studies have been conducted on monetary parity, the perpetuation of income and nickel taxation through most notably the setting up of sovereign funds, fiscal reforms and the integration of the regional economy.
INEQUALITIES AND GROWTH
This readjustment targeted by the Matignon and Nouméa Accords concerns education for the people and the levying and distribution of resources (incomes vs taxation). The demographic context of New Caledonia creates an awareness of the importance of the ethnic dimension in inequalities, which we have been able to explore using the data from French population surveys since these provide separate ethnic statistic for New Caledonia. The comparative approach also proved pertinent when analysing the impact of ethnic origin on the education–employment relationship. New Caledonia shares a history of settlement colonisation and a contemporaneity of policies to reduce ethnic inequalities with its two much larger neighbours, Australia and New Zealand.
Taxation is an essential tool in redistribution and social justice. The problem with optimal taxation lies in the arbitration between effectiveness and equity (redistribution). The scope of application extends to both direct and indirect taxation. New Caledonia has had competence in fiscal matters since the beginning of the 20th century, which it has exercised through legislation, since the Organic Law of 19 March 1999 came into force, and through regulations, with Congress voting on its own implementing provisions. Exercising this competence has enabled the collectivity to develop its own fiscal system, independently of that of metropolitan France.